Professional Documents
Culture Documents
STATE OF BAMBI
PROSECUTION
V.
I
THE TABLE OF CONTENTS
THAT THE HONBLE COURT OF SESSIONS DOES NOT HAVE THE REQUISITE JURISDICTION
OF THE
IS TRIABLE BY
ANY
MAGISTRATE. ...................................................................................................................... 2
B. THAT SECTION 501
AND
SECTION 502
OF THE
ARE
C. THAT SECTION 227 OF THE BARATA PENAL CODE, 1860 IS TRIABLE BY THE COURT BY
WHICH THE ORIGINAL OFFENCE WAS TRIABLE. ..................................................................... 3
II
II. THAT PAROLE
SECTION 227
OF THE
BARATA
PROHIBITED
III.
AND
MR. JAIMIL
SECTION 385
OF THE
IV.
THAT
THE
ACCUSED
SECTION 501
AND
502 OF BARATA
PROBABILITY THE ACT MUST HAVE BEEN DONE BY THE ACCUSED. ..................................... 14
VI.
III
THE INDEX OF AUTHORITIES
STATUTORY COMPILATIONS
1. THE CODE OF CRIMINAL PROCEDURE, 1973.
2. THE BARATA PENAL CODE, 1860.
3. THE INDIAN EVIDENCE ACT, 1872
4. THE ARMS ACT, 1959.
5. THE PRISONS (BOMBAY FURLOUGH AND PAROLE) RULES, 1959.
6. MODEL PRISON MANUAL
FOR THE
SUPERINTENDENCE
AND
MANAGEMENT
OF
PRISONS
IN
INDIA.
DICTIONARIES
1. BRYAN A. GARNER, BLACKS LAW DICTIONARY (8th ed. 2001)
2. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009)
3. WEBSTERS NEW INTERNATIONAL DICTIONARY (1926)
WEBSITES
1. www.manupatra.com
2. www.judis.nic.in
3. www.supremecourtcaselaw.com
4. www.scconline.com
5. www.indiankanoon.com
BOOKS
1. Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th
Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2010).
2. Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32nd Enlarged ed.
Nagpur: LexisNexis Butterworths Wadhwa (2013).
THE INDEX OF AUTHORITIES
IV
3. Lal, Batuk. Commentary on the Indian Penal Code, 1860- Volume 2, 2nd ed. New Delhi:
Orient Publishing Company (2011).
4. Lal, Batuk. Commentary on the Code of Criminal Procedure, 1973- Volume 2, 5th ed.
New Delhi: Orient Publishing Company (2010).
5. Gaur, K.D. Commentary on the Indian Penal Code, 2nd ed. Delhi: Universal Law
Publishing Co. (2013).
6. Thakker, C.K.,J. Ratanlal & Dhirajlal Law of Crimes Volume 1, 23rd ed. New Delhi:
Bharat Law House (1998).
7. Thakker, C.K.,J. Ratanlal & Dhirajlal Law of Crimes Volume 2, 23rd ed. New Delhi:
Bharat Law House (1998).
8. Kelkar, R.V. Criminal Procedure, 4th ed. Lucknow: Eastern Book Co. (2013).
9. Gour, Hari Singh. Penal Law of India- Volume 4, 11th ed. Allahabad: Law Publishers
(India) Pvt. Ltd. (2011).
10. Chandrachud, Y.V., J. Ratanlal & DhirajlalCommentary on the Code of Criminal
Procedure- Volume 2, 18th Enlarged ed. Nagpur: Wadhwa and Company (2006).
11. Sarkar, S.C. Commentary on the Indian Penal Code- Volume 4, 3rd ed. Allahabad:
Dwivedi Law Agency (2011).
12. Sarkar, S.C. The Code of Criminal Procedure- Volume 1, 10th ed. Allahabad: Dwivedi
Law Agency (2012).
13. Gaur, K.D. Textbook on The Indian Penal Code, 4th ed. Delhi: Universal Law Publishing
Co. Pvt. Ltd. (2013).
14. Sarkar, S.C. Commentary on Law of Evidence- Volume 1, 3rd ed. Allahabad: Dwivedi
Law Agency (2011).
15. Bhattacharyya, T, The Indian Penal Code, 6th ed. Allahabad: Central Law Agency (2010).
16. Mitra, B.B. Code of Criminal Procedure, 21st ed. Kolkata: Kamal Law House (2011).
V
TABLE OF CASES
1. Arun Shankar Ralmingam Naidu v. State of Maharashtra, 2013 LawSuit (Bom) 639. ...... 6
2. Ashok Dangra Jaiswal v. State of MP, AIR 2011 SC 1335. ............................................. 15
3. Babu Singh v. State of Punjab, (1964) 1 Cri LJ 566 ......................................................... 14
4. Dadu @ Tulsidas v. State of Maharashtra, 2002 (Cri. Supp.) Bom CR 390-SB: 2002 (1)
Mah LJ 902: 2001 (5) BomCR 264: 2002 Cri LJ 3850.. ..................................................... 5
5. Dadu v. State of Maharashtra, (2000) 8 SCC 437: AIR 2000 SC 3203 ............................. 5
6. Dharam Das Wadhwani v. State of U.P., (1974) 4 SCC 267: 1974 SCC (Cri) 429: 1974
Cri LJ 1249. ....................................................................................................................... 15
7. Dilip Sudhakar Pendse v. Central Bureau of Investigation, Criminal Appeal No. 966 of
2013 (Arising out of SLP(Crl.)No. 6486 of 2011)-Decided on 16-July-2013. ................... 4
8. Edwards, 6 C&P. 515 .......................................................................................................... 9
9. Fulchand Shah v. Union of India, 2000 SCC (Cri) 659 ...................................................... 6
10. Ganeshlal v. State of Maharashtra, 2008 CrLJ (NOC) 1150: 2008 (4) AIR Bom R 448
(Bom) ................................................................................................................................... 6
11. Hanumant v. State of Madhya Pradesh,AIR 1952 SC 343. .............................................. 14
12. Hira Lal Hari Lal Bhagwati v. Central Bureau of Investigation, (2003) 5 SCC 257. ...... 13
13. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605. ............................................. 14
14. Kali Ram v. State of H.P., (1973) 2 SCC 808: 1973 SCC (Cri) 1048: 1974 Cri LJ 1. ...... 15
15. Kali Ram v. State of H.P., (1973) 2 SCC 808: 1973: 1973 SCC (Cri) 1048: 1974 Cri LJ 1
............................................................................................................................................ 15
16. Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773. .......................................... 15
17. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883. ................................... 14
18. M & M 347. ......................................................................................................................... 9
19. Main Pal v. State of Haryana, 2004 SCC(Cri) 1882 ......................................................... 15
VI
20. Manisha Koirala v. Shashilal Nair, 2003 (2) BomCR 136: 2002 SCC Online Bom 827.
...................................................................................................................................... 10, 12
21. ManjulabaiKisnaGulabe v. State of Maharashtra, 2002 3 MhLJ 226. ............................... 6
22. Mina Patel v. State of West Bengal, 2007 CrLJ 3011: 2007 (2) Cal Cri LR 524 (Cal). ...... 4
23. Paramhans Yadav v. State of Bihar, 1987 (35) BLJR 127. ............................................... 14
24. R. Venkata Krishnan v. CBI, (2009) 11 SCC 737: AIR 2010 SCC 1812: (2009) 11
SCALE 102: (2009) 13 SCR 762...................................................................................... 13
25. Raghunath v. State of Haryana, AIR 2003 SC 165 ........................................................... 15
26. Ram Swaroop v. State ( Govt . NCT ) of Delhi, AIR 2013 SC 2068. ................................ 15
27. re, Mantri Mattapalli Narasimha Rao, AIR 1919 Mad 954: 44 IC 973: 19 CrLJ 445........ 9
28. S. Sant Singh @ Pilli Singh v. Secretary, Home Department, 2006 CrlJ 1515: 2006 (1)
Bom CR (Cri.) 743-FB: 2006 (2) Mah LJ 422. ................................................................ 4,6
29. S.Sant Singh v. The State of Maharashtra, Criminal Writ Petition no.345 OF 2005. ........ 6
30. Saju v. State of Kerala, AIR 2001 SC 175. ....................................................................... 13
31. Sarad Birdhi Chand Sarda v. State of Maharashtra, 1984 Cri LJ 1738 (SC). .................. 14
32. Sarat v. Khagendra, AIR 1961 SC 334: (1961) 2 SCR 133 ................................................ 3
33. State of Kerala v. P Sugathan, (2000) 8 SCC 203............................................................. 13
34. State of Maharashtra and others v. Suresh PandurangDarvakar, (2006) 4 SCC 776........ 6
35. State(Govt. of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121: 2003 SCC (Cri) 1586........ 3
36. Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376: 1958 Cri LJ
701...................................................................................................................................... 15
VII
THE STATEMENT OF JURISDICTION
The Defence, most humbly and respectfully, submits that this Honble Court of Sessions does
not have the requisite subject matter jurisdiction to entertain and adjudicate this matter under
Section 26 of The Code of Criminal Procedure, 1973.
VIII
THE STATEMENT OF FACTS
1. In 1993, Panna Boy was arrested under the provisions of Terrorist and Disruptive Act.
However, after serving about a year and half in jail, he was released on bail. Finally in March
2013, the Supreme Court of Barata held him guilty and sentenced him to five years rigorous
imprisonment under Arms Act, 1959 for illegal possession of arms.
2. Before conviction, Panna and Naika were shooting for a movie- Hit-factory. A few
intimate scenes which Naika had declined earlier and a few scenes at a big hospital were left.
However, after Pannas conviction, Naika refused to be associated with the film. Mr. Jaimil
and Mr. Saba tried to persuade her forcefully and she had to call her security guards to ask
them to leave.
3. Panna was first allowed parole in December 2013 and surprisingly on February 3, 2014 he
got it again, citing his wifes illness whom he visited daily at the Star Hospital. On February
6, Jaimil got admitted in the same hospital. Panna visited Smt. Mashaal (DW 5), who dons
mothers role for top movie stars and Ms. Poonam (DW 4), a starlet with striking
resemblance with Naika at the hospital. On February 8, Panna wore a colourful retro outfit at
the Central Mall where a shooting took place.
4. On February 14 posters of Hit-Factory were released and on February 16, Naika filed a suit
in the High Court of Bambi for permanent injunction of the movie. That evening she received
two threatening phone calls from anonymous numbers.
5. Next day, she filed a criminal complaint in the Bambi Central police station against Mr. Saba,
and Mr. Jaimil and named Panna as a co-conspirator. The Assistant Commissioner filed an
FIR and ordered for enquiry. Mr. Pannas parole was cancelled and an arrest warrant for
Jaimil and Saba was issued by the Metropolitan Magistrate. The Magistrates Court took
cognizance of the chargesheet forwarded by the police after investigation, and thereafter,
committed the case to the Court of Sessions in Bambi Thane.
THE STATEMENT OF FACTS
IX
THE STATEMENT OF CHARGES
1. Accused Mr.Panna Boy S/o Mr. Heera Boy has been charged for the offences under
Section 120B r/w Section 34, Section 227, Section 501 and Section 502 of the Barata
Penal Code, 1860.
2. Accused Mr. Saba S/o Late Mr. Musa Karim has been charged for the offences under
Section 120B r/w Section 34, Section 385, Section 501 and Section 502 of the Barata
Penal Code, 1860.
3. Accused Mr. Jaimil S/o Mr. Kabir has been charged for the offences under Section 120B
r/w Section 34, Section 385, Section 501 and Section 502 of the Barata Penal Code, 1860.
X
THE SUMMARY OF ARGUMENT
I.
THAT
THE
HONBLE COURT
OF
SESSIONS
The Defence most respectfully pleads before this Honble Court of Sessions that since the
offences are triable by a Court of Magistrate, the prosecution thereof could not have been
transferred to the Court of Sessions. Admittedly, the offences are not at all exclusively triable
by the Court of Sessions. The accused have been charged under the Sections of Barata Penal
Code, 1860 viz. Section 120B r/w Section 34, Section 227, Section 385, Section 501 and
Section 502. Taking into consideration these Sections of the BPC and the Court which has the
jurisdiction to try these offence, reference to Section 26 of the Code of Criminal Procedure,
1973 should be made which expressly provides the Courts by which the offences are triable.
II.
THAT PAROLE
SECTION 227
OF THE
THAT SABA AND JAIMIL ARE NOT LIABLE UNDER SECTION 385 OF THE BARATA
PENAL CODE, 1860.
The Defence most humbly pleads before this Honble Court that no overt act has been
committed by the accused Saba and Jaimil under Section 385 of BPC and there is no
evidence to prove the same. The phone call could have been made by a fan or any other
THE SUMMARY OF ARGUMENTS
XI
person for that matter. Moreover, the shoot had already been completed by using editing
techniques on the previous scenes. The question of doing two days shoot and completing the
film does not arise. This clearly proves that somebody was giving fake threats to Ms. Naika.
There is no demand of property or forcing or demanding of any delivery of property which is
sine qua non of the offence under Section 385 of BPC. As the essential requirement of the
offence under Section 385 of BPC is not fulfilled, hence the invoking of this section cannot
be there.
IV.
THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTIONS 501 AND
502 OF BARATA PENAL CODE, 1860.
The Defence respectfully pleads before the Honble Court of Sessions that Ms. Naika had
admittedly signed a contract for acting in the movie for which she had also accepted advance
money from Mr. Saba and Mr. Jaimil, after hearing the story thereof and after having fully
accepted the storyline with eyes wide open, which allowed the accused to print any material
to advertise via print and digital media the movie Hit Factory. It is further ruled out by the
Bombay High Court that once a person agreed to act in the film then it is not possible
thereafter to contend that certain scenes filmed are defamatory to that persons character or
reputation. Ergo, the accused are not liable under Section 501 and 502 of BPC.
V.
THAT
UNDER
SECTION 120B
READ WITH
SECTION 34
CRIMINAL CONSPIRACY
OF THE
1860.
The Defence humbly contends that the accused are not liable for Criminal Conspiracy under
Section 120 B of BPC. For this offence, it is necessary to establish that there was an
agreement between the parties for doing an unlawful act. A few bits here and a few bits there
on which the prosecution relies will not be held to be adequate for connecting the accused
XII
with commission of criminal conspiracy. Though it is difficult to support charge of
conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial
evidence, a clear link has to be established otherwise conspiracy cannot be accepted.
VI.
The defence most humbly submits before this Honble Court that the principle that the
accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt
is of cardinal importance in the administration of criminal justice. The burden of proving the
guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the
Courts cannot record a finding of the guilt of the accused. The Court has rightly held that for
proving prosecution case quality and not quantity of evidence was essential.
1
THE ARGUMENTS ADVANCED
I.
THAT
THE
HONBLE COURT
OF
SESSIONS
The Defence most respectfully pleads before this Honble Court that since the offences are
triable by a Court of Magistrate, the prosecution thereof could not have been transferred to
the Court of Sessions. Admittedly, the offences are not at all exclusively triable by the Court
of Sessions.
The accused have been charged under the Sections of Barata Penal Code, 18601 viz. Section
120B r/w Section 34, Section 227, Section 385, Section 501 and Section 502. Taking into
consideration these Sections of the BPC and the Court which has the jurisdiction to try these
offence, reference to the Section 262 of the Code of Criminal Procedure, 19733 should be
made which expressly provides the Courts by which the offences are triable. As far as
offences under the Penal Code are concerned they are triable by the High Court, the Court of
Sessions or any other Court shown in the first Schedule to Cr.P.C.4
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th Enlarged ed. Nagpur:
LexisNexis Butterworths Wadhwa (2010), p. 80.
2
A. THAT SECTION 3855
OF THE
IS TRIABLE BY
ANY
MAGISTRATE.
Referring to the offences that the accused have been charged with, Section 385 of BPC is
triable by Any Magistrate.
B. THAT SECTION 5016
AND
SECTION 5027
OF THE
ARE
For Section 501 and Section 502 of BPC, the Schedule provides two courts having
jurisdiction to try the offence in two different situations i.e.
First Situation: if the printing or sale or engraving matter knowing it to be defamatory
is against the President or the Vice-President or the Governor of a state or
Administrator of a Union territory or a Minister in respect of his conduct in the
discharge of his public functions when instituted upon a complaint made by the public
prosecutor, then the offence is triable by the Court of Sessions.
Second Situation: if the Sale or printing or engraving matter knowing it to be
defamatory, in any other case, then the offence is triable by the Magistrate of the First
Class.
The instant case falls under the second aforesaid situation i.e. the offences under Section 501
and Section 502 of BPC in the instant case, are triable by the Magistrate of the First Class.
3
C. THAT SECTION 2278 OF THE BARATA PENAL CODE, 1860 IS TRIABLE BY THE COURT
BY WHICH THE ORIGINAL OFFENCE WAS TRIABLE.
The Court that has the requisite jurisdiction to try the offence under Section 227 of BPC is
the Court by which the original offence was triable. The Section 227 deals with the violation
of condition of remission9 10 11 of punishment. The essential ingredients of this offence are:
(i)
That the accused was sentenced to undergo imprisonment but it was remitted;
(ii)
(iii)
That the accused violated any condition(or which remission was granted);
(iv)
It is humbly submitted before this Honble Court that the requirements of this offence are not
fulfilled in the instant case, as Panna has not accepted any conditional remission of
punishment. Absque hoc remission, the question of invoking Section 227 of BPC does not
arise. The facts that the accused was granted a remission of punishment and that the
conditions on which the remission was granted must also be proved by documentary
Gaur, K.D. Textbook on The Indian Penal Code, 4th ed. Delhi: Universal Law Publishing Co. Pvt. Ltd. (2013),
p.362 states:
Remission is reduction of the quantum of punishment without changing its character. It exempts the convict
from undergoing that part of the sentence which is remitted.
10
In Sarat v. Khagendra, AIR 1961 SC 334: (1961) 2 SCR 133, the Honble Supreme Court observed:
138 in law the order of remission merely means that the rest of the sentence need not be undergone, leaving
the order of conviction by the court and the sentence passed by it untouched.
11
In State(Govt. of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121: 2003 SCC (Cri) 1586, the Honble Supreme
Court observed:
10 Remission is reduction of the amount of a sentence without changing its character. In the case of a
remission, the guilt of the offender is not affected, nor is the sentence of the Court, except in the sense that the
person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving
out a part of it.
12
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32nd Enlarged ed. Nagpur: LexisNexis
Butterworths Wadhwa (2013), p. 1075.
4
evidence. It has been rightly ruled by the Honble Supreme Court that if there is error in
committing the case to the Court of Sessions and even if the Court of Sessions framed the
charges then the matter will again have to go back to the Magistrate Court for the trial.13
Section 228 of the Cr.P.C. provides that if Session Judge is of opinion that an offence has
been committed but that offence is not exclusively triable by him, he frames a charge against
the accused and transfers the case to the Chief Judicial magistrate.14 When the Court of
Sessions does not find the case exclusively triable by it, it has to remit the case to the Chief
Judicial Magistrate either after framing charge or without framing charge.15
It is, therefore, submitted that the Magistrate was in error in committing the case to the Court
of Sessions. It was further submitted that even if the Court of Sessions framed the charges,
the matter will again have to go back to the Magistrate Court for the trial.
II.
THAT PAROLE IS NOT REMISSION AS COVERED UNDER SECTION 227 OF THE BARATA
PENAL CODE, 1860.
A. THAT PAROLE IS NEITHER REMISSION NOR SUSPENSION OF SENTENCE.
A perusal of Section 227 of BPC and Section 432 of Cr.P.C. clearly indicates that it deals
with suspension and remission, so absque hoc remission these sections cannot be invoked.
But in the instant case remission per se is not there. In S. Sant Singh v. Secretary, Home
Department,16 the issue was whether the grant of parole amounts to suspension of sentence
within the meaning of Section 432 of Cr.P.C. The Honble Bombay High Court ruled :
34 The grant of parole does not amount to suspension of sentence as contemplated
by Section 432, Criminal Procedure Code
13
Dilip Sudhakar Pendse v. Central Bureau of Investigation, Criminal Appeal No. 966 of 2013 (Arising out of
SLP(Crl.)No. 6486 of 2011)-Decided on 16-July-2013.
14
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th Enlarged ed. Nagpur:
LexisNexis Butterworths Wadhwa (2010), p. 1004.
15
Mina Patel v. State of West Bengal, 2007 CrLJ 3011: 2007 (2) Cal Cri LR 524 (Cal).
16
2006 CrlJ 1515: 2006 (1) Bom CR (Cri.) 743-FB: 2006 (2) Mah LJ 422.
5
The Honble Supreme Court in Dadu v. State of Maharashtra,17 held that parole does not
amount to suspension, remission or commutation of sentences. The Court stated:
6 parole is not a suspension of the sentence. The convict continues to be serving the
sentence despite granting of parole under the Statute, Rules, Jail manual or the
Government orders. Parole means that release of a prisoner temporarily for a
special purpose before the expiry of a sentence, on the promise of good behaviour and
return to jail. It is a release from jail, prison or other interment after actually been in
jail serving part of sentence.
Rule 2018 of the Prisons (Bombay Furlough and Parole) Rules, 1959 provides that period
spent on parole shall not count as remission of the sentence. In Bombay High Court in Dadu
@ Tulsidas v. State of Maharashtra,19 Justice R.K. Bhatt held:
6Rule 20 of the Prisons (Bombay Furlough and Parole) Rules, 1959 provides that
the period spent on parole shall not count as remission of the sentence. It neither
amounts to suspension of sentence. In such circumstances, the period of parole has to
be treated as part of the sentence and the said period shall, therefore, be counted
towards the sentence undergone by the petitioner.
Parole is a form of "temporary release" from custody, which does not suspend the sentence or
period of detention. Remission means reducing the period of sentence without changing its
character. Thus, as parole does not fall under either suspension or remission, it would not be
covered by Section 432 of Cr.P.C. The Government has no powers to grant parole under
17
18
Rule 20 of the Prisons (Bombay Furlough and Parole) Rules, 1959 states:
Parole not to be counted as remission of sentence- the period spent on parole shall not count as remission of
the sentence.
19
2002 (Cri. Supp.) Bom CR 390-SB: 2002 (1) Mah LJ 902: 2001 (5) BomCR 264: 2002 Cri LJ 3850.
6
Section 432 of Cr.P.C.20 However, Government or Competent Authority can grant parole to
convicts under the Rules framed under the Prisons Act.21 Where a person is released on
parole, his period of release would not be counted towards total period of sentence undergone
by him.22
B. THAT PAROLE OBTAINED BY HERO PANNA WAS GENUINE AND NOT A PROHIBITED
ACTIVITY, NOR WAS IT IN VIOLATION OF ANY RULES.
Hero Panna applied for parole due to his urgency. The parole obtained by Panna both in
December and February, were genuine. Parole doesnt amount to suspension of sentence.23
From this it becomes clear that parole cannot be covered by Section 432 of Cr.P.C.24 Parole is
to be granted only on sufficient cause being shown.25 Parole is essentially granted to meet
emergent situations26. Panna under no circumstances violated any conditions of parole.
Pannas wife was admitted in the hospital for a serious ailment. As per the rules for granting
parole, the same was granted by a competent authority which is in compliance with Rule 18
and 19 of the Prisons (Bombay parole and furlough) rules, 1959. The purpose of Rule 19 is to
afford an opportunity to the prisoner to meet his relatives and to take part in not only the
moment of sorrow, illness or death but also in the moment of joy.27 Also, with respect to
20
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th Enlarged ed. Nagpur:
LexisNexis Butterworths Wadhwa (2010), p. 1746.
21
S. Sant Singh @ Pilli Singh v. Secretary, Home Department, 2006 CrlJ 1515: 2006 (1) Bom CR (Cri.) 743FB: 2006 (2) Mah LJ 422.
22
Ganeshlal v. State of Maharashtra, 2008 CrLJ (NOC) 1150: 2008 (4) AIR Bom R 448 (Bom).
23
24
S.Sant Singh v. The State of Maharashtra, Criminal Writ Petition no.345 OF 2005.
25
26
Arun Shankar Ralmingam Naidu v. State of Maharashtra, 2013 LawSuit (Bom) 639.
27
7
availing the parole, Panna got special leave for the illness of his spouse as per Rule 17.0928 of
the Model Prison Manual, 2003. No provision of the aforementioned manual has been
violated by Panna. As per Rule 17.1529, of the Model Prison Manual, 2003, also, the prisoner
can be released only after obtaining a police report.
Panna under no circumstances violated any conditions of the parole that were set forth before
him. It isnt a condition as stipulated under Rule 24 of the prisons (Bombay Parole and
Furlough) Rules, 1959. Thus, even if the court holds that the Accused No.1 shot for a film,
which is vehemently denied, it wont be a violation of parole rules as he had a genuine cause.
III.
AND
MR. JAIMIL
SECTION 385
OF THE
The Defence most humbly pleads before this Honble Court that no overt act has been
committed by the accused Saba and Jaimil under Section 385 of BPC and there is no
evidence to prove the same as has been committed by both the accused. The phone call could
have been made by any fan or any other person for that matter. It cannot be proved beyond a
reasonable doubt that the accused are the ones who overtly performed this act. The alleged
phone calls were received by Ms. Naika from two different public booths30 and anybody
would have called her from the public booth. It creates a strong doubt against the notion that
the persons who called from the public booths were Mr. Saba and Mr. Jaimil.
28
8
B. THAT THE CALLS WERE ANONYMOUS AND WERE PROBABLY FAKE THREATS.
Taking into consideration the transcript provided under Annexure- 4 of the proposition, the
person calling Ms. Naika at 6:05 p.m. on 16th Feb, 2014 stated that he came to know that Ms.
Naika refused to cooperate in completing the film31and then again when the call was made
to her at 6:15 p.m. on 16th Feb, 2014, that person stated that Ms. Naika should finish the
movie and only two days shoot was required and if she does not complete the shooting in
order to complete the film then she would face tragic results.32
The Defence would like to state that the movie had already been completed by using editing
techniques on the previous scenes. The question of doing two days shoot and completing the
film does not arise. This clearly proves that somebody was giving fake threats to Ms. Naika.
C. SECTION 385
OF THE
Section 385 of BPC provides for Putting person in fear of injury in order to commit
extortion, which seeks to punish an attempt to commit extortion, but when the attempt has
failed, the offence is not complete and the property is not delivered. 33 This section punishes
an attempt which has failed to induce delivery of the property, but the intimidation was
intended to bring about those results, though it did not succeed in doing so.34 The offence
under Section 385 has following essentials:
(i)
31
Annexure 4, Call record - Transcript, p. 13 of the proposition, Phone No. 12345678(Public Booth) Time
6:05 p.m. on 16th February, 2014:
Male voice1: We know everything. Heard that you refused to cooperate in completing the film. It is not good
for you. Not good at all.
32
Annexure 4, Call record - Transcript, p. 13 of the proposition, Phone No. 56781234(Public Booth) Time
6:15 p.m. on 16th February, 2014:
Male voice2: By all means. Finish the movie dear. Just two days shoot very discreet.. Else.Results will be
very tragic.
33
Thakker, C.K.,J. Ratanlal & Dhirajlal Law of Crimes Volume 2, 23rd ed. New Delhi: Bharat Law House
(1998), p. 1884.
34
Gour, Hari Singh. Penal Law of India- Volume 4, 11th ed. Allahabad: Law Publishers (India) Pvt. Ltd. (2011),
p.3786.
9
(ii)
The accused attempted to put any person in fear, of any injury; and
(iii)
39
satisfied that the putting in fear was with the intention of extorting delivery of some
property.40 Extortion has been defined under Section 38341 of BPC. In extortion the person is
put in fear to deliver to any person any property or valuable security, or anything signed or
sealed which may be converted into valuable security. Delivery of property by the person put
35
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32nd Enlarged ed. Nagpur: LexisNexis
Butterworths Wadhwa (2013), p. 2231.
36
37
Gour, Hari Singh. Penal Law of India- Volume 4, 11th ed. Allahabad: Law Publishers (India) Pvt. Ltd. (2011),
p.3787.
38
Lal, Batuk. Commentary on the Indian Penal Code, 1860- Volume 2, 2nd ed. New Delhi: Orient Publishing
Company (2011), p. 2301.
39
In re, Mantri Mattapalli Narasimha Rao, AIR 1919 Mad 954: 44 IC 973: 19 CrLJ 445.
40
M & M 347.
41
10
in fear is the essence of the offence under this Section.42 In other words, to constitute the
offence of extortion there must be fear and delivery of property.43
In the instant case, taking into consideration the transcript provided under Annexure-4, there
is no demand of property or forcing or demanding of any delivery of property which is sine
qua non of the offence under Section 385 of BPC. As the essential requirement of the offence
under Section 385 of BPC is not fulfilled, hence the invoking of this section cannot be there.
IV.
THAT
THE
ACCUSED
SECTION 501
AND
502 OF BARATA
Gaur, K.D. Textbook on The Indian Penal Code, 4th ed. Delhi: Universal Law Publishing Co. Pvt. Ltd. (2013),
p. 695.
43
Gaur, K.D. Commentary on the Indian Penal Code, 2nd ed. Delhi: Universal Law Publishing Co. (2013),
p.1272.
44
11
8The next issue would be whether prima facie atleast the scene enacted by the
double would result in the tort or defamationThe question, however, is whether the
scenes which are shown in the film would fall within the expression "defamation".
1st test: Salmond & Heuston on the Law of Torts. Twentieth Edition defines a defamatory
statement as under:-A defamatory statement is one which has a tendency to injure
the reputation of the person to whom it refers; which tends, that is to say, to lower
him in the estimation of right-thinking members of society generally and in particular
to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike,
or disesteem. The statement is judged by the standard of an ordinary, right-thinking
member of society. Hence the test is an objective one, and it is no defence to say that
the statement was not intended to be defamatory, or uttered by way of a joke. A
tendency to injure or lower the reputation of the plaintiff suffices, for If words are
used which impute discreditable conduct to my friend, he has been defamed to me,
although I do not believe the imputation, and may even know that it is untrue. Hence
it is settled that a statement may be defamatory although no one to whom it is
published believes it to be true.
2nd Test: Carter-Ruck on Libel and Slander, Fifth Edition have carved out some of the tests
as under:-(1) a statement concerning any person which exposes him to hatred,
ridicule, or contempt, or which causes him to be shunned or avoided, or which has a
tendency to injure him in his office, professional or trade.(2) A false statement about a
man to his discredit.(3) Would the words tend to lower the plaintiff in the estimation
of right thinking members of society generally?
12
In Manisha Koirala v. Shashilal Nair,45 the Honble Bombay High Court further held that
once a person agreed to act in the film then it is not possible thereafter to contend that certain
scenes filmed are defamatory to that persons character or reputation.
8Once the plaintiff had agreed to act in the film it is not possible thereafter to
contend that certain scenes filmed are defamatory to the plaintiff's character and
reputation. The scenes are integral as contended by defendant No. 1 to the film. There
is no material to the contrary either in the affidavit or documents. Once the scenes are
integral it must be assumed that the plaintiff was aware that this would form part of
the film. All that can be said is that the plaintiff did not act in those scenes which had
to be acted by a fill-in artist or double..It is, however, clear to my mind that once
having agreed to act in the film it will be too late for the plaintiff atleast on the
material as it stands, to hold that a case of defamation has been made out.
Ms. Naika had foreknowledge of existence of intimate scenes which were essential to the
script of movie. Earlier, Ms. Naika had declined to shoot intimate scenes and same were to be
shot using a double with the consent of Ms. Naika, but later on she agreed to the scenes
herself.46 She had already acted in many scenes of the movie. But after, Pannas conviction,
she withdrew herself from the movie. The movie was almost over and only few scenes
remained. The accused had no option, but to consider the use of Ms. Poonam, a double for
Ms. Naika as she had already acted on behalf of her on previous occasions. The frames were
to be superimposed using Ms. Poonam and most of Pannas scenes were already over and the
few that remained were to be completed using a double in his stead which is a standard
practice in the Barata. Thus, the accused are not liable under Section 501 and 502 of BPC.
45
46
13
V.
THAT THE ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY UNDER SECTION
120B47 READ WITH SECTION 3448 OF THE BARATA PENAL CODE, 1860.
The Defence humbly contends that the accused are not liable for Criminal Conspiracy under
Section 120 B of BPC. For this offence, it is necessary to establish that there was an
agreement between the parties for doing an unlawful act.49 The Honble Supreme Court in R.
Venkata Krishnan v. CBI50 laid down the following ingredients of criminal Conspiracy:
(i)
(ii)
Agreement
must
relate
to
doing
or
causing
to
be
done
either:
(a) An illegal act (b) an act which is not illegal in itself but is done by illegal means.51
A. THAT THERE WAS NO AGREEMENT TO COMMIT AN UNLAWFUL ACT.
For criminal conspiracy, it must established that all the accused had the intention and had
agreed to commit the crime.52 A few bits here and a few bits there on which the prosecution
relies will not be held to be adequate for connecting the accused with commission of criminal
conspiracy.53 The relative acts or conduct of parties must be conscientious and clear to mark
47
Hira Lal Hari Lal Bhagwati v. Central Bureau of Investigation, (2003) 5 SCC 257.
50
(2009) 11 SCC 737: AIR 2010 SCC 1812: (2009) 11 SCALE 102: (2009) 13 SCR 762.
51
Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32nd Enlarged ed. Nagpur: LexisNexis
Butterworths Wadhwa (2013),p. 607.
52
53
14
their concurrence as to what must be done. Such concurrence may not be inferred by a group
of irrelevant facts artfully arranged so as to give an appearance of coherence.54
B. IN CIRCUMSTANTIAL EVIDENCE, THE CHAIN OF EVIDENCE MUST SHOW THAT IN ALL
PROBABILITY THE ACT MUST HAVE BEEN DONE BY THE ACCUSED.
In cases where the evidence is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should at the first instance be fully established and all the
facts so established should be consistent only with the hypothesis of the guilt of the accused.
The circumstances should be of a conclusive nature and in tendency and they should be such
as to exclude every hypothesis but the one proposed to be proved.55 The circumstances from
which the conclusion of guilt is to be drawn should be fully established and not may be
established. There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with innocence of the accused and must show that in all
probability the act must have been done by the accused.56 It is difficult to support charge of
conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial
evidence, a clear link has to be established otherwise conspiracy cannot be accepted.57
VI.
The defence most humbly submits before this Honble Court that the principle that the
accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt
is of cardinal importance in the administration of criminal justice. 58 So the Court shall not
convict accused unless prosecution proves its case beyond reasonable doubt.59
54
55
56
Sarad Birdhi Chand Sarda v. State of Maharashtra, 1984 Cri LJ 1738 (SC).
57
58
Babu Singh v. State of Punjab, (1964) 1 Cri LJ 566; Nanavati v. State of Maharashtra, AIR 1962 SC 605.
15
The burden of proving the guilt of the accused is upon the prosecution and unless it relieves
itself of that burden, the Courts cannot record a finding of the guilt of the accused.60 Every
criminal trial begins with the presumption of innocence in favour of the accused and the
provisions of the code are so framed that a criminal trial should begin with and be throughout
governed by this essential presumption.61 The prosecution is not able to prove beyond
reasonable doubt the guilt of accused, so the benefit of doubt should be in favour of accused.
It is well settled principle of law, if two views are possible, one in favour of the accused and
other adversely against it, the view favouring the accused must be accepted.62 The Supreme
Court emphasized the necessity of having principle of presumption of innocence and
observed:
It is no doubt true that wrongful acquittals are undesirable and shake the confidence
of the people in the judicial system, much worse; however is the wrongful conviction
of an innocent person. The consequences of the conviction of an innocent person are
far more serious and its reverberations cannot but be felt in the civilized society.63
The Honble Supreme Court observed there has to be clear evidence of guilt of accused and
in absence of that it is not possible to record finding of his guilt64 The Court has rightly held
that for proving prosecutions case, the quality and not quantity of evidence was essential.65
59
60
Kali Ram v. State of H.P., (1973) 2 SCC 808: 1973 SCC (Cri) 1048: 1974 Cri LJ 1.
61
Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701.
62
Raghunath v. State of Haryana, AIR 2003 SC 165; Main Pal v. State of Haryana, 2004 SCC(Cri) 1882
63
Kali Ram v. State of H.P., (1973) 2 SCC 808: 1973: 1973 SCC (Cri) 1048: 1974 Cri LJ 1; See also Dharam
Das Wadhwani v. State of U.P., (1974) 4 SCC 267: 1974 SCC (Cri) 429: 1974 Cri LJ 1249.
64
65
XI
THE PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly and respectfully prayed before this Honble Court to adjudge and declare that:
The accused Mr. Panna boy is not guilty for offence u/s 120 B read with 34, 227, 501
& 502 of the Barata Penal Code, 1860.
The Accused Mr. Saba is not guilty u/s 120 B read with 34, 385, 501 & 502 of Barata
Penal Code, 1860.
The Accused Mr. Jaimil is not guilty u/s120 B read with 34, 385, 501 & 502 of Barata
Penal Code, 1860.
And any other order which this Honble Court may be pleased to grant in the interest of
justice, equity and good conscience.
All of which is most humbly and respectfully submitted.
Date:
Place: Bambi
THE PRAYER